Observing and reflecting on global stories we tell to persuade, understand and relate to each other.

May 2011

31 May 2011

Moderating another small group research project I am struck by several things: (1) how unanimously the research participants (even those who have served on civil juries) agree that the burden of proof the Plaintiff must carry is beyond a reasonable doubt; or, at least 75% and above; (2) how agreeable they are to recognize that the "more likely than not" standard is like a football nudged over the 50-yard line; and (3) how seriously they take their task to figure out a case for a stranger working with grace and dignity with a group of other strangers who have given up a day for a few bucks cash and a box lunch.

Do juries represent the diversity of a community? Would I agree with the jury if I was on trial? Is it time for trial by a professional jury? Diane Diamond asks the question in her May 27, 2011 article in HuffPostPolitics: Has the Time Come For Professional Jurors? She recounts experiences from her years watching court trials. Excerpt.

"During the last couple weeks, I watched intently as prospective jurors took the stand to explain to the court the financial hardship that leaving work to judge another would bring to their lives. Some of them work for employers who grant paid leave for jury duty but often it covered only a day or two. Many others worked for struggling small businesses or are self-employed and they explained that every day they didn't show up at work was lost profit or a day's pay docked off their paycheck."

Not surprisingly, a number of research participants have said as much to me over the years: "I'd be a lot more willing to serve if they would pay us a decent wage."

And then there is the trial process itself. Excerpt.

"During trial jurors are not allowed to pass a note to the judge or raise their hands to ask a question if they don't understand something. And, let's admit, for most of us much of what lawyers say in court is mumbo jumbo. In addition, some states don't allow jurors to take notes in court or to have a copy of their instructions in the deliberation room. They are often put into that deliberation room with no idea of how to even begin to talk about a verdict."

How strange is that? In what other life experience are we asked to sit and absorb unfamiliar data without the chance to clarify our questions or to know if we are even getting the data correctly? Of course, some "enlightened" courts allow the jurors to write down questions and hand them in at which point the court may or may not answer those questions. Sounds a bit like a "bait & switch."

I've seen it myself when I am instructing the research participants not to talk to the attorneys but to write down every question they have. I assure them that we will address the questions during the moderated debrief. You can almost feel the relief that they will have a chance to learn. For this same reason I provide them with the opportunity to complete written questionnaires before we talk. They can get it all down and not worry that their train of thought has derailed.

Time is also spent clarifying with the group by asking, "What did you hear?" How come this step is important? As Frank Luntz has reminded us in his book, "Words That Work" - "It's not what we say, it's what they hear." And some of what they "hear" is revealed on the notes they are allowed to take during the research project. As a colleague says, "You could write a book." I collect the notes to read and understand the stories they were taking in knowing full well that decision-making processes are largely subconscious. We cannot simply take at face value a literal response. It's just one more piece of information.

Granted, small group research offers us the chance for corrections along the way. A trial does not afford us that opportunity. My colleagues and I recruit "research virgins." We say we do not want to work with folks who have experienced legal focus groups or mock trials before so they do not sit with pre-conceived notions of the process. So I am curious what the effect would be if we assembled a panel of professional jurors - maybe retired judges and the like. Diamond is curious, too. Excerpt.

"I ran the idea of turning retired legal types into jurors by a dear friend of mine. He startled me with the question: What percentage increase in the conviction rate do you think there'd be with professional jurors? He believes the legal fraternity would act like judges as well as jurors in their minds and predicted the conviction rate would jump considerably.

I'm not so sure. But then again neither is anyone else because we've never fully tested the idea.

I just remember the haunted looks I've seen on the faces of many jurors I've encountered during my career covering court cases. Some have told me in post-trial interviews they found it hard to concentrate in the unfamiliar territory of a court room. During proceedings they worried about jobs, family and their peace of mind.

If there are other citizens better suited for this job, people who could more keenly focus on the job at hand, don't we owe it to everyone involved in the system to try it out?"

What do you think? Want to go with Joe the Plumber? Or Jerry the Judge? Or do we make room for professionals in the jury box?

"The ABA Journal asked 10 experts in the field to offer a specific idea about how our court systems can continue to deliver justice effectively and efficiently during a time of fiscal austerity. Those ideas, which range from the practical to the radical, are their own. But we’re hoping they will start a broad-based conversation about ways to protect our justice system in these uncertain times."

You will find ideas from getting the Bar more involved to ending the war on drugs. All it takes is one person to grab one idea. Take a look at the plethora of topics to discover the one that sings to you.

Q: There's a lot of information out there on jury (de)selection. What one thing could help me in voir dire?

A: A person likely to identify with your client.

"Most jury trials are contests between the rich and the poor," Clarence Darrow wrote in a 1936 essay called "How to Pick a Jury." The trick, he advised, is to find, for each seat, a man so likely to identify with your client that, "really, he is trying himself." And so: "If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is cold as the grave." ["Objection" by Jill Lepore "Clarence Darrow's Unfinished Work.]

27 May 2011

"Most jury trials are contests between the rich and poor." [Clarence Darrow]

In The New Yorker, May 23, 2011, American Chronicals section, Jill Lepore reviews two new biographies on Clarence Darrow, "who is not only American history's best-know trial lawyer but also its most famous skeptic,...." The Abstract is generously informative but it's only a glimpse into the Darrow story. Subscribers can read the article on The New Yorker's iPad app or in the online archive. (Others can pay for access - and it's well worth the nominal investment for insights into Darrow's mind, his quotes, and how he became American history's best-known trial lawyer.)

Lepore's article begins with a day in a labor strike at the Paine Lumber Company in Oshkosh, Wisconsin that ended with a death of a striker at the (alleged) hands of an Irish ex-cop named Edward Casey. Paine had been replacing men with women and children to work in the lumber mill making doors. Thomas Kidd, the general secretary of the Amalgamated Woodworkers International, came from Chicago to organize the strike. Excerpt.

"Darrow played a role in some two thousand trials. He was born in Kinsman, Ohio, in 1857, and he attended one year of University of Michigan law school, before joining a practice in Andover, Ohio. After moving to Chicago, he first worked as a lawyer for the Chicago & Northwestern Railway, and then, in 1894, he quit the railroad to defend the president of the American Railway Union, Eugene V. Debs. Wisconsin v. Kidd was called to order on Friday, October 14, 1898. Darrow began building an argument that the only reason this case had gone to trial was that George Paine wanted it to. Darrow intended to prove the existence of a conspiracy led by Paine, but the judge ruled all the relevant evidence inadmissible. Then came the closing statements. This is a trial for conspiracy, Darrow told the jury. “Back of all this prosecution is the effort on the part of George M. Paine to wipe these labor organizations out of existence.” Past that, he told the jury, he did not give a fig about the facts in this case. He spoke for eight hours. The jury was out for fifty minutes. All three defendants were acquitted. Darrow went on to serve as labor’s leading lawyer. Later, he was indicted and tried, twice, for attempting to bribe jurors."

How does a man such as this ever get his start in the law? He and his family lived across the street from a tin-shop. The tinner was the justice of the peace. Darrow would go across the street to watch the trials. He attributes his deep skepticism to his father who taught him "that doubt was the beginning of wisdom." This same father also recounted a story about being forced to watch a hanging. His own father had a lesson to teach: just by watching, and not speaking up, one had helped kill the man being hung.

"The law is a bum profession, as generally practiced," Darrow wrote. "It is utterly devoid of idealism and almost poverty stricken as to any real ideas." Darrow was a lawyer He was also a teacher. And the idea he most wanted to get across? To teach doubt.

What happened in the Paine trial? Among other things, Darrow was trying to prove that a strike was not to ruin or upset anyone's business (Paine claimed to have lost hundreds of thousands of dollars, and this back in 1898) but to relieve suffering.

Things haven't changed much. We still have labor. We still have strikes. We still need Darrows. "Just this past March, Scott Walker, the Republican Governor of Wisconsin, signed a law making public-sector collective bargaining a crime."

"Gentlemen, the world is dark," Darrow told that jury in Oshkosh, "but it is not hopeless."

If you can smell a bear behind you, you don't need it pointed out. But you should be aware there is a bear near the trail where you are hiking.

A trial lawyer, friend and colleague in Wisconsin recently reminded me when lawyers see potential value in what my colleagues and I provide as a litigation consultants. It makes sense that lawyers who know they have a winner won't hire litigation consultants. They bring us in because they are starting to get unsure about the case, the story, the discovery, the issues, the client, the results, or all of it. Yes, this is often the case.

Here are some insights from Lee Gesmer, the founding partner at the Boston law firm of Gesmer Updegrove LLP. Gesmer's blog "focuses on my practice areas: IP, business and antitrust law, as well as any other topic (legal or otherwise) that strikes my fancy. I've also tried to make the blog (and my scribd.com page, below), a resource on practice in the Massachusetts state and federal courts." On May 26, 2011 Gesmer took on a topic of the value of jury consultants (notice the turn of phrase) post-Rajaratnam. Excerpt.

"Trial lawyers have long been deeply divided on the question of whether jury consultants are “worth it.” Some of the consultants’ recommendations in this case (as reported in the WSJ), are so obvious that it your lawyer doesn’t know them without a jury consultant’s advice, get a new lawyer. For example, the Journal reports that the consultantants concluded that jurors who were members of ethnic minority groups were more sympathetic to Mr. Rajaratnam, who was born in Sri Lanka. Hmm . . . . did OJ’s lawyers need jury consultants to tell them that people of color might be more favorably disposed to OJ than whites? I hope not. Lawyers shouldn’t need jury consultants to tell them that people are predisposed to like people like themselves. If my client is an ultra orthodox Jew, I want a jury of the same. If my client is a native American . . . . well, you get it."

Yes, I do get it. Even so, Gesmer goes on and on to make sure all y'all get it: he is skeptical that jury consultants are worth their salt (although I gotta tell you I have not yet earned $300,000.00 in salt on a case as the Rajaratnam jury consultants did.) I am not going to argue Gesmer's position. Some litigators want a trusted professional sitting alongside them; others go it alone.

Here's my position: I believe in the value of an objective set of eyes before we get to trial. Gesmer, too, offers a major exception to his rule of thumb about the worth of jury consultants. He suggests that litigation consultants really earn their chops running small group research, otherwise known as focus groups or mock trials. Excerpt.

"However, there is one major exception to these comments. When the Wall Street Journal described Mr. Rajaratnam’s use of jury consultants, it also mentioned that the defendant’s trial team had conducted a “mock trial”. In other words, a group of people was brought together – – presumably a group that reflected the expected demographics of the jury pool in Manhattan – – and Mr. Rajaratnam’s lawyers “put on their case.” Mock trials can vary greatly in scope. Some are very elaborate, and include not only opening statements but actual direct and cross-examination of witnesses. Others are quite abbreviated; the lawyers might grab a few secretaries or paralegals (or perhaps the spouses or friends of firm employees), and do nothing more than present opening statements. Typically, one lawyer is asked to role-play a lawyer on the other side of the case. The best mock trials actually include juror deliberations behind a one way mirror, while the attorneys are able to observe and videotape the deliberations. To get the most out of this exercise it should be as realistic as possible, and the mock jury should not know which side of the case had hired them.

While I am not a strong believer in jury consultants who provide advice on what “type” of person is the ideal juror in a case (or the “anti-ideal juror”), I am a strong believer in the benefits of mock trials, and a jury consultant can help organize a mock trial and analyze the results. There is nothing more humbling to a lawyer who has spent years developing his or her case theme, only to discover that it goes over like a lead ballon when presented to a mock jury. Or, that the witness whom the lawyer is counting on to win the case is perceived as insincere or unpersuasive. A mock trial can reveal these weaknesses.

Of course, the lawyer has to learn this far enough in advance of trial to change course, and not on the eve of trial, when it may be too late. If not . . .. well, there’s always the next case!"

TIP: Do the research - there is a format and budget for every case.

TIP: Do it early.

TIP: Do it often.

TIP: Get some professional help from someone who is not invested in your case, your clients, and your outcome to confuse forest and trees.

TIP: Aim to lose so you learn where the landmines are so you can blow them up before trial or safely walk jurors around them in trial.

In the Uruba tribe of Africa, children are named not only at birth but throughout theirlives by their characteristics and the events that befall them.

Naming My Daughter by Patricia Fargnoli

In the Uruba tribe of Africa, children are named not only at birth but throughout their lives by their characteristics and the events that befall them.

The one who took hold in the cold nightThe one who kicked loudlyThe one who slid down quickly in the ice stormShe who came while the doctor was eating dessertNew one held up by heels in the glareThe river between two brothersSecond pot on the stovePrincess of a hundred dollsHair like water falling beneath moonlightStrides into the dayShe who runs away with motorcycle club presidentDaughter kicked with a bootDaughter blizzard in the skyDaughter night-pocketShe who sells sports club membershipsOne who loves over and overShe who wants child but lost one.She who wants marriage but has noneShe who never gives upDiana (Goddess of the Chase)Doris (for the carrot-top grandmothershe never knew)Fargnoli (for the fatherwho drank and left and died)Peter Pan, Iron PumperTumbleweed who goes mouths without callingDaughter who is a pillar of lightDaughter mirror, Daughter stands aloneDaughter boomerang who always comes backDaughter who flies forward into the daywhere I will be nameless.

My mother taught my sisters and me how to sew our own clothes. Mom reminded us to be careful about when to cut on the bias of the fabric. The pattern would tell us when to use the bias of the fabric to give a drape to a skirt, for example, or how the same bias could distort an item of clothing. Bias is just the natural leaning, if you will, in fabrics or textiles.

What does it mean to be biased? It means a person has a preference (or a leaning) toward one thing or another. We are human beings. We are biased. We are biased in little ways (chocolate over vanilla ice cream) and in big ways (religion, politics, economics, etc.).

TIP: When selecting a jury we want to know what the leaning (or preference) is for or against the issues in our case.

TIP: More importantly, we want to know whether the prospective juror might not give equal chance to a different idea.

TIP: Most importantly, we need to learn if the leaning has become hardened into a distorted form of bias which I call "prejudice," and which might open the doors to a challenge for cause.

TIP: The litigator's job is to explore the prospective juror's biases by creating a place of permission to express those biases.

TIP: The litigator's challenge is to make room for those biases while listening for those folks who will make room for or give an equal chance to a different idea - yours.

26 May 2011

Is this the time - are they ready - will they need us - will they be OK?

I am so very very proud: my nephew and godson will soon join the ranks of the US Coast Guard. His own path - not quite like his aunt in the Navy Nurse Corps but heck! still on the water and in service. It seems only yesterday he was drawing with crayons. I am sure he will do just fine! My sister and brother-in-law have done miraculous work parenting this smart young man with dancing eyes & the Wyzga smile. And yet......

You gotta trust. I was reminded of this as I watched another fledgling stretch its wings high over a Manhattan lawn: Pip took a walk. Make sure you watch the short video shot by another red tail hawk watcher. I guess they know what they're doing after all.

My dear friend and colleague, Stephanie West Allen, sent this notice over the cybertransom and I am sending it along to you:

Finding Meaning and Balance in Your Life and Work

Description: Ever get caught in trying to be everything to everyone-and by the way, doing it perfectly, with grace and charm and humor. The interesting thing is, even if you really love to do all those things, sometimes we need to reboot and consider the impact our over-doing has on our lives. In this session we will explore what are our core values and life purposes, we will work on setting priorities and exercise discernment, and we will create an action plan to live in congruence with our values and stay in balance.

DATE: Friday, May 27, 9am PST and 12 PM EST. Link and phone number are below.